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What’s the Impact of Citizens United?

Some scholars argue the biggest changes may have already happened
January 22, 2010

The Supreme Court’s 5-4 ruling yesterday in Citizens United v. FEC, overturning the federal ban on corporate spending in elections, has been cast in the media as a momentous decision. The New York Times gave the news a banner headline and two front-page stories: one described the ruling as “a sharp doctrinal shift [that] will have major political and practical consequences; the other said it gave lobbyists “a potent weapon” to wield against candidates for office.

There’s no denying that the opinion indicates the Roberts Court is prepared to make sweeping decisions on topics that have been the subject of long, and often agonized, debate. There’s also no denying that this court seems extremely skeptical of attempts to check the role of money in politics—a stance that has elicited both applause and condemnation. But some sharp observers are already arguing that the practical impact of this specific ruling may not be as great as the headlines suggest—or, at least, not for the obvious reasons.

That is in large part because, thanks to recent court decisions, the restraints on corporate money in campaigns were already modest. As Nate Persily, director of the Center for Law and Politics at Columbia Law School, wrote for “The Takeaway”:

Most critics of the decision will suggest that the Court, with this decision, opened the floodgates to unlimited corporate and union spending in next year’s and subsequent federal elections. The truth is that this decision is the latest in a series of decisions (four, to be exact) from the Roberts Court knocking down campaign finance laws. The floodgates, such as they are, were opened three years ago in a different case, Wisconsin Right to Life v. FEC.

What was the impact of that earlier decision? Persily explained in an earlier post at the legal blog Balkinization:

That case held that advertisements capable of an interpretation other than an admonition to vote for or against a candidate are protected under the First Amendment. In other words, even before Citizens United, a corporation could spend all its treasury money on ads days before an election urging listeners to “call Congressman X and tell him his liberal policies are destroying America.”

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…Citizens United, if it knocks out what is left of the rule governing advertisements post-WRTL, would expand protection beyond not-too-subtle advocacy to include ads that more clearly express opposition or support for a candidate.

It remains to be seen just what impact this move will have on campaign advertising. But as Yale Law School professor and campaign finance reform advocate Heather Gerken notes, earlier efforts to keep money out of politics “have been underwhelming”; further, “As a practical matter, there’s not much distance between an ad that tells voters to ‘call Senator X and tell her to stop being mean to puppies” and one that tells voters to “vote against Senator X.’” And, as Persily says, it’s not clear that express advocacy makes for a more effective campaign ad, nor is it clear that corporations are eager to spend more on campaigns (as opposed to, say, lobbying).

But that doesn’t mean that the ruling is not significant, according to Gerken. From her piece at The American Prospect:

[T]he most important line in the decision… was this one: “ingratiation and access . . . are not corruption.” For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become “too compliant with the[ir] wishes.”… “Ingratiation and access,” in other words, were corruption as far as the Court was concerned. Justice Kennedy didn’t say that the Court was overruling these cases. But that’s just what it did.

If the Court rigidly insists that Congress can regulate only to prevent quid-pro-corruption, narrowly defined, then Citizens United has implications that extend well beyond what corporations can do… While Justice Kennedy backed off from saying anything definitive, we may find that it was the Court’s discussion of corruption, not corporations, that matters most in the long run.

If this is indeed the frame the court applies, it may be headed in exactly the wrong direction; there’s reason to believe that “ingratiation and access” are if anything more, not less, corrosive than quid-pro-quo corruption. Some reformers have suggested tackling that problem by adding resources to the system, rather than attempting to prohibit them, and Gerken takes a similar approach in her search for a silver lining:

Perhaps Citizens United — which may impose limits on Congress’s power to regulate that extend well beyond corporate spending — will push reform in a new direction. Rather than trying to limit the power of money in politics, we should harness money’s power to fix politics.

For example, matching rules for small donors (which convert a $20 donation into, say, $100 or $200) give politicians a reason to reach out to working-class and middle-class voters. While campaign finance has always tried to level down — restricting the ability of the monied to influence politics — the better strategy going forward may be to level up by giving everyday voters a bigger say.

Whatever happens, and however broad the ruling’s effect is, it seems likely that the amount of money in politics will continue to rise. That means a continuing role for journalists in tracking spending, monitoring influence, and making the business of politics transparent to the public.

Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.